Citation Nr: 0829674
Decision Date: 09/02/08 Archive Date: 09/10/08
DOCKET NO. 06-28 340 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to service connection for right foot
degenerative arthritis.
2. Entitlement for a skin disorder variously claimed as a
recurring rash (eczema and dermatitis).
3. Entitlement to service connection for depression.
4. Entitlement to service connection for residuals of
removal of the veteran's right ovary
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. J. Drucker, Counsel
INTRODUCTION
The veteran evidently had active military service from
December 1978 to June 1983, had verified active service from
June 1983 to March 1992, and had unverified service in the
United States Naval Reserve from 1993 to 2004.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a September 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Seattle, Washington.
In July 2008, the veteran testified during a hearing at the
RO before the undersigned Veterans Law Judge. A transcript
of that hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
First, the veteran seeks service connection for right foot
degenerative arthritis. In her January 2006 and other
written statements, and during her July 2008 Board hearing,
she said that she initially injured her right foot in January
1979 in service and was subsequently treated for arthraliga
in that foot in 1985. She indicated that she had this
problem when she entered the Reserve. The veteran said that,
in 2004, she fractured two toes and subsequently developed
foot pain after a cast was removed. She said a computed
tomography (CT) scan showed residuals of an old injury that
she attributes to service.
Service medical records document the veteran's treatment for
right foot pain in January 1979. In May and June 1985, she
was treated for arthralgia of the right ankle. Private
medical records dated in January 2005 indicate that in June
2004, the veteran sustained a fracture that required open
reduction after which she developed chronic foot pain.
Results of a September 2004 private CT report include some
findings most consistent with secondary ossification centers
or perhaps old injuries. In October 2004, a right foot
sprain/degenerative arthritis and right posterior tibial
tendinitis are noted in a private medical record.
Second, the veteran maintains that her right ovary removal
was related to service. She points to service medical
records starting in 1980 that document abnormal Papanikolaou
(Pap) smears and said that, in 1990, she was diagnosed with
dysplasia, a pre-cancerous condition. She maintains that her
condition was present prior to her pregnancy in 1993 that led
to the February 1993 discovery of a dermoid on the right
ovary for which she underwent an oophorectomy. The veteran
further contends that the right ovary removal led to a
hormone imbalance and early menopause and that a physician
told her it contributed to her depression.
Service treatment records indicate that mild and marked
cervical inflammation was noted in September 1980 and January
1983, respectively. In April 1990, results of a cervical
biopsy were chronic cervicitis and features suggestive of
condyloma, and acute and chronic inflammation with reactive
squamous metaplasia, with no malignancy. In November 1990,
the veteran was referred to the Dysplasia Clinic for further
evaluation. Private hospital records show that, in February
1993, she was hospitalized for induction of a 41 week
pregnancy, fetal distress, and sterilization request. The
veteran underwent a cesarean section with bilateral tubal
ligation and a benign dermoid was found on the right ovary
for which a right oophorectomy was performed. An August 2001
private medical record indicates that the veteran was
perimenopausal. More recent records reflect treatment for
depression also associated with stress.
Third, the veteran reports that, from approximately 1979 to
1988, she was repeatedly treated in service for skin
disorders. She said that, in April 1995, while in the Naval
Reserve, she was referred to the Dermatology clinic for
treatment and, more recently in September 2000 and October
2005, was treated for a skin rash and eczema.
Service medical records document that, from 1979 to 1988, the
veteran was treated for skin disorders variously identified
as atopic dermatitis, rash, chronic eczema, folliculits,
acne, tinea pedis, and seborrhea. An April 1995 service
treatment record indicates that the veteran was referred to
the Dermatology clinic for pruritic papulo-pustulo/plague
lesions on her arms/elbows/legs with some lesions excoriated.
A September 2000 private medical record indicates that the
veteran complained of a rash on her upper arms and legs and,
an October 2005 private emergency room record indicates that
she had eczema.
The Board is of the opinion that the veteran should be
afforded VA orthopedic, gynecologic, and dermatologic
examinations to determine to etiology of any right foot and
skin disorders, and residuals of right ovary removal, found
to be present. A psychiatric examination would be warranted
if the veteran's claimed residuals of removal of her right
ovary are shown to be related to service, to determine if any
diagnosed depression is related to her right ovary removal.
Further, the veteran testified that she served in the United
States Naval Reserve from 1993 to 2004 and submitted some
service medical records from that time, including a report of
medical history completed in August 1993 for enlistment into
the Naval Reserve, Annual Certificates of Physical Condition,
an October 1998 examination report, and an April 2004 report
of medical history. However, there is no indication that the
RO made any effort to obtain the veteran's service treatment
records from her Naval Reserve service or verify her periods
of active and inactive duty for training (ADUTRA and
INADUTRA). This should be done prior to Board consideration
of the veteran's claims.
As well, the veteran indicated that she had active duty
starting in December 1978, and not in June 1983 as reported
by the RO. A Certificate of Release or Discharge From
Service (DD Form 214) shows that she had active service from
June 1983 to March 1992, with four years and several months
of prior active duty, and service medical records document
her service prior to June 1983. However, her correct dates
of active service should be verified by the service
department.
Finally, during her July 2008 hearing, the veteran testified
that her primary care provider was at Harris Hospital in
Burlington, Washington (see hearing transcript at page 8).
Efforts should be made to obtain the more current medical
records regarding the veteran's treatment for her claimed
disorders.
Accordingly, the case is REMANDED for the following action:
1. The veteran should be requested in
writing to provide complete information
regarding her United States Naval
Reserve military assignment(s) from
1993 to 2004. Then, the RO/AMC should
contact the United States Naval Reserve
and Washington State Naval Reserve
units, including the Naval Reserve
Center, Bangor, Washington, 98315-1050,
service departments and any other
appropriate state and federal office,
and request the specific dates (not
earned retirement points) for all the
appellant's periods of ADUTRA and
INADUTRA for the period from 1993 to
2004, and her service medical records.
If any records are unavailable, a note
to that effect should be placed in the
claims file, and the veteran and her
representative so advised in writing.
2. The RO/AMC should contact the
appropriate service department or
federal agency to verify the veteran's
correct dates of active duty prior to
June 1983, e.g., from December 1978 to
March 1992.
3. After obtaining any necessary written
authorization(s) from the veteran, the
RO/AMC should request all medical
records regarding the veteran's
treatment at the Harris Hospital in
Burlington, Washington, and any
additional private treatment records
identified by her and dated since
January 2005. If any records are
unavailable, a note to that effect
should be placed in the claims file,
and the veteran and her representative
so advised in writing.
4. Then, the veteran should be scheduled
for appropriate VA examinations, e.g.,
orthopedic, gynecologic, and
dermatologic, preferably performed by
physicians, to determine the etiology
of any right foot degenerative
arthritis, residuals of removal of the
right ovary, and skin disorder (s),
found to be present. A complete
history of the claimed disorder should
be obtained by each examiner. All
indicated tests and studies should be
performed and all clinical findings
reported in detail.
a. Prior to the orthopedic
examination (regarding the claim
for right foot degenerative
arthritis), the examiner should
review the claims folder,
including the appellant's service
medical records for her period of
active duty (from December 1978 to
March 1992) and Naval Reserve
service (from August 1993 to
2004). The examiner is requested
to address the following matters:
i. Does the appellant currently
have a disorder manifested by
right foot degenerative
arthritis or other chronic
right foot disability (or
disabilities)?
ii. If she has such a disability
(or disabilities), does it
represent a disease process
or the residuals of an
injury?
iii. Taking into consideration the
evidence incorporated in the
service medical records
(including in January 1979
and May and June 1985), and
the September 2004 private CT
report and October 2004
private record diagnosing
degenerative arthritis in the
right foot, when was the
disability (or disabilities)
incurred?
iv. If any disability was
incurred before December 1978
(or before August 1993), was
there a permanent increase in
disability, beyond the
natural progress of the
disorder, during a period of
military duty, namely from
December 1978 to March 1992,
or from August 1993 to 2004?
v. If any diagnosed disability
was incurred after December
1978 (or after August 1993),
the examiner is requested to
provide an opinion concerning
the etiology of any right
foot degenerative arthritis
found to be present, to
include whether it is at
least as likely as not (i.e.,
to at least a 50- 50 degree
of probability) that any
currently diagnosed right
foot degenerative arthritis
was caused by military
service, or whether such an
etiology or relationship is
unlikely (i.e., less than a
50-50 probability).
b. The gynecologic examiner should be
requested to provide an opinion
concerning the etiology of any
diagnosed residuals of removal of
a right ovary found to be present,
to include whether it is at least
as likely as not (i.e., at least a
50-50 degree of probability) that
any such disorder noted was caused
by military service (including the
findings noted in September 1980
and January 1983 noting mild and
marked cervical inflammation, and
April 1990, noting results of a
cervical biopsy included chronic
cervicitis and features suggestive
of condyloma, and acute chronic
inflammation with reactive
squamous metaplasia, but no
malignancy), or whether such an
etiology or relationship is
unlikely (i.e., less than a 50-50
probability).
The examiner is particularly
requested to address whether it
is at least as likely as not
that the veteran's dermoid on
the right ovary (noted in
February 1993) and subsequent
oophorectomy was related to the
abnormal Pap smear findings
noted in her service medical
records.
c. The dermatologic examiner is
requested to review the veteran's
service treatment records from
active duty (from December 1978 to
March 1992) and from her Naval
Reserve service (from August 1993
to 2004) and address the following
questions
.
i. Does the appellant currently
have a disorder manifested by
eczema, dermatitis, skin
rash, or other chronic skin
disability (or disabilities)?
ii. If she has such a disability
(or disabilities), does it
represent a disease process
or the residuals of an
injury?
iii. Taking into consideration the
evidence incorporated in the
service medical records
(including from 1979 to 1988,
noting diagnoses of atopic
dermatitis, rash, chronic
eczema, tinea pedis and
seborrhea, and in April 1995,
noting pruritic papulo-
pustulo/plague lesions), and
in the September 2000 and
October 2005 private records
diagnosing a rash and eczema,
when was the disability (or
disabilities) incurred?
iv. If any disability was
incurred before December 1978
(or before August 1993), was
there a permanent increase in
disability, beyond the
natural progress of the
disorder, during a period of
military duty, namely from
December 1978 to March 1992
or from August 1993 to 2004?
v. If any diagnosed disability
was incurred after December
1978 (or after August 1993)
the examiner is requested to
provide an opinion concerning
the etiology of any skin
disorder found to be present,
to include whether it is at
least as likely as not (i.e.,
to at least a 50- 50 degree
of probability) that any
currently diagnosed skin
disorder was caused by
military service, or whether
such an etiology or
relationship is unlikely
(i.e., less than a 50-50
probability).
d. A rationale should be provided for
all opinions expressed. The
veteran's claims file should be
made available to each examiner in
conjunction with the examination,
and the examination reports should
indicate whether the examiners
reviewed the veteran's medical
records.
NOTE: The term "at least as
likely as not" does not mean
merely within the realm of
medical possibility, but rather
that the weight of medical
evidence both for and against a
conclusion is so evenly divided
that it is as medically sound
to find in favor of causation
as it is to find against it.
5. If, and only if, the veteran is
diagnosed with residuals of removal of
a right ovary related to service by a
VA gynecological examiner, should she
then be scheduled for a VA psychiatric
examination, preferably performed by a
physician, to determine the etiology of
any depressive disorder found to be
present. All indicated tests and
studies should be performed and all
clinical findings reported in detail.
If a depressive disorder is not
diagnosed, the examiner need not
comment further.
a. The examiner should identify all
currently present depressive
disorders.
b. For each such depressive disorder
identified, the physician should
proffer an opinion, with
supporting analysis, as to the
likelihood that any diagnosed
depressive disorder was caused by,
or aggravated by, the veteran's
residuals of removal of the right
ovary disability. The degree of
depressive disorder that would not
be present but for the residuals
of the removal of the right ovary
disability should be identified.
c. A complete rationale should be
provided for all opinions
rendered. The veteran's claims
file should be made available to
the examiner and the examination
report should indicate if the
examiner reviewed the veteran's
medical records.
6. Thereafter, the RO should readjudicate
the veteran's claims for service
connection for depression, residuals of
removal of the right ovary, a skin
disorder, and right foot degenerative
arthritis. If the benefits sought on
appeal remain denied, the veteran and
her representative should be provided
with a supplemental statement of the
case (SSOC). The SSOC should contain
notice of all relevant actions taken on
the claims, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal since the
June 2006 statement of the case. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).